The claimant worked as a consultant surgeon for the respondent and started that employment in 2004.  There was an investigation into the work being carried out by the claimant with a decision made to demote him,  but on the same pay.  He originally accepted this but then resigned in 2017 working three months’ notice until 25th August 2017.   As a result of the issues faced by the claimant, an early conciliation certificate was given in May 2017 and there was an issue as to whether it was valid. There was then a second early conciliation certificate which was granted after the claim was brought.  However, the claimant was informed by his solicitors that the 24th November 2017 was the last day he could submit his claim.

The claimant presented his claim on 27th November 2017 ranging from constructive unfair dismissal to race discrimination.  There were also other claims brought that the Tribunal had no power to determine, such as injuries from stress at work.  The issue for the EAT to determine was whether the claim was brought within time.  On this point, they held that the two early conciliation certificates had no effect on the time being extended as the first one was given before the ‘dismissal’ had taken place and the second came after the claim was brought so was irrelevant.   The claimant sought to have time extended stating that it would be just and equitable (in relation to the race discrimination claim) considering the issues that had arisen with the early conciliation certificates.

The EAT outlined that the decision at first instance to strike out the claim for being out of time should be upheld.  The reason that the ‘just and equitable’ extension was not used even though the claim was only 3 days out of time because he had received legal advice and was aware of the time limit.   Furthermore, the Tribunal stated that some of the allegations that the claimant relied upon were of a historic nature which must be considered alongside the actual delay itself.  As a result, the appeal was dismissed with the strike out being upheld.

Practical Lessons

With early conciliation coming into Northern Ireland employment practice in January 2020, the way in which the scheme has operated in England is important.   This case involved the extension of time limits and early conciliation certificates.  These certificates will be given in NI cases where there is no agreement after the conciliation process.  With early conciliation giving a one month pause to the time limit, this case shows the limits on that.   There were two such certificates here but because one was before the complained of act and the second was after the claim was actually brought they were not relevant to the issue of time.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-o-adedeji-v-university-hospital-birmingham-nhs-foundation-ukeat-0171-19-ba

Read a review of the subsequent Court of Appeal Decision here.